NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 17-1622

_____________ CORY COTTINGHAM, Appellant

v. TUTOR PERINI BUILDING CORP.; KEATING BUILDING CORPORATION

______________ Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. Civil No. 2-14-cv-02793) District Judge: Honorable Thomas N. O’Neill, Jr.

______________ Submitted Under Third Ci rcuit L.A.R. 34.1(a) October 11, 2017

______________ Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges. (Filed: January 22, 2018)

______________ OPINION *

______________ SHWARTZ, Circuit Judge. Cory Cottingham was injured while working at a construction site. He appeals the District Court’s order granting summary j udgment to Defendants Tutor Perini Building

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 Corporation (“TPBC”) and Keating Building Corporation on his negligence claims. Because TPBC is entitled to statutory em ployer immunity u nder Pennsylvania’s Workers’ Compensation Act, and Cottingham failed to demonstrate that Keating Building Corporation owed him a legal duty, we will affirm.

I TPBC was the construction manager for th e Chestnut Street Tower construction project in Philadelphia. TPBC is a wholly ow ned subsidiary of Tutor Perini Corporation. In 2009, Tutor Perini Corporation acqui red Keating Building Corporation, which subsequently changed its name to Kea ting Building Company. Keating Building Company is a wholly owned subsidiary of Tutor Perini Corporation. Cottingham was employed by a subcontrac tor, Carson Concrete Corporation,

which TPBC hired to work on the Chestnut Street Tower site . In July 2 013, Cottingham and a co-worker prepared a stack of concrete panels to be lifted by crane. When the crane lifted the panels from the ground, the panels slid and fell on Cottingham’s foot, causing injury. Cottingham obta ined a worker’s compensati on settlement from Carson. Cottingham sued TPBC and Keating, 1 alleging negligence at the construction site. The District Court granted summary judgme nt to TPBC because it was protected by statutory employer immunity under Pennsylva nia’s Workers’ Compensation Act, 77 Pa.

1 Cottingham has sued Keating Building Co mpany under its former name, Keating Building Corporation. Since the precise name of the entity is immateri al in this case, we will refer to this entity as “Keating.”3 Stat. §§ 52, 481(a), and to Keating because Cottingham had not esta blished that Keating owed him a duty of care. Cottingham appeals.

II 2

Our review of the District Court’s orde r granting summary judgment is plenary. McNelis v. Penn. Power & Light Co., 867 F. 3d 411, 414 (3d Cir. 2017). We apply the same standard as the District Court, viewin g facts and drawing all reasonable inferences in the non-movant’s favor. Hugh v. Butle r Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005). Summary judgment is appropria te where “there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute “is genuine only if there is a sufficien t evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d 418 , 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Th e moving party is entitled to j udgment as a matter of law if the non-moving party fails to make “a suffici ent showing on an esse ntial element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III

A

2 The District Court had jurisdiction purs uant to 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.4 Pennsylvania’s Workers’ Compensation Ac t grants certain employers immunity from lawsuits for job-related injuries by es tablishing the workers’ compensation system as the exclusive remedy for injured employees . See 77 Pa. Stat. §§ 52, 481(a). The Act immunizes employers who obtain workers’ compensation insura nce for workplace injuries. Id. § 481(a). The Act also imm unizes so-called “statutory” employers, which are treated as employers under the Workers’ Compensation Act but are not otherwise contractual or common-law employers of the inju red employee. Peck v. Del. Cty. Bd. of Prison Inspectors, 814 A.2d 185, 187-88 (Pa. 2002). A statutory employer helps “to ensure the payment of compensation benefits ” by serving as a “reserve” from which to pay benefits if the employee’s direct employer does not. Id. at 188. To be a statutory employer in the worker s’ compensation context, the following

must be established: (1) [a]n employer who is under contra ct with an owner or one in the position of an owner[,] (2) [p]remises o ccupied by or under the control of such employer[,] (3 ) [a] subcontract made by such employer[,] (4) [p]art of the employer’s regular business [entrust ed] to such subcon tractor[, and] (5) [a]n employee of such subcontractor. Id. (quoting McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930)). Cottingham contests only the second factor of this conjunctive test. That factor is satisfied where the employer proves “either occupancy or control” of the premises. Braun v. Target Corp., 983 A.2d 752, 764 (Pa. Super. Ct. 2009) (c iting Kelly v. Thackray Crane Rental, Inc., 874 A.2d 649, 656 (Pa. Super. Ct. 2005)). While the “employer’s occupancy or control must be actual, [it] need not be exclusive.” Id.5 The record reflects beyond genuine dispute that TPBC both controlled and occupied the construction site. TPBC and th e property owner signed the Construction Management Services (“CMS”) Agreement, wh ich made TPBC “solely” responsible for overseeing the construction and workers on the site. To this end, TPBC provided a safety orientation for those working on the project. The project ’s Environmental Health and Safety Plan also imposed a supervisory ro le on TPBC. The pl an required each subcontractor “to attend a weekly safety meeting chaired by TPBC, ” App. 952, and to “report unsafe acts or conditions . . . anyw here on the project to TPBC immediately,” App. 931. TPBC also monitored the subcon tractors’ weekly safe ty talks to their employees by requiring the subcontractors to furnish attendance sheets to TPBC, and used the Walsh Mobile Site Safety Audit Syst em to identify, correct, and provide prompt feedback to subcontractors about “safety issues on the jobsite.” App. 933. TPBC also had disciplinary authority over workers who engaged in unsafe actions. TPBC was also contractually obligated to the property owner to “maintain a competent supervisory and office staff at the Site adequate in size and experience to coordinate and supervise the Work.” App. 345-46. TPBC had an office on site and its safety policies were carried out by on-site safety supervisors. Cottingham himself testified that TPBC safety official Michael Hart or other TPBC pers onnel “walked the job site every single day. ” App. 140, 168. Based upon the above, no reasonable juro r could conclude TPBC lacked either actual control or occupancy of the constr uction site for purposes of the statutory employer test. See Braun, 983 A.2d at 765 (finding occupancy where the project6 manager “was on site every[]day and easy to locate if needed”); Kelly, 874 A.2d at 657 (finding occupancy by the cons truction manager where its “project manager, secretary, and project superintendent [were] on the s ite daily,” its employe es were “regularly present simultaneously with [the subcontrac tor’s] employees,” and it “maintained a job trailer at the project site”); Emery v. Leav esly McCollum, 725 A.2d 807, 811 & n.3 (Pa. Super. Ct. 1999) (finding occupa ncy due to “an on-site project superintendent” and actual control of the site where the general contract or “was responsible for the overall safety of the job site,” one of its employees “was responsible for making sure that [safety] regulations were followed and monitoring th e subcontractors’ safety programs,” and the general contractor’s “supervisor was generally on site if work was being performed”); see also Peck, 814 A.2d at 189 (describing the “cl assic statutory employer situation” in which “a property owner hires the general contr actor, who hires a subcontractor to do specialized work on the jobsite , and an employee of the subc ontractor is injured in the course of his employment”); Br aun, 983 A.2d at 764-65 (same). Cottingham asserts that the individuals who performed the safety tasks on the site were Keating employees and that this demons trates that Keating controlled the site, not TPBC. “In determining which of two aff iliated corporations is the employer of a particular employee, a court must ask which co rporation has the right to control the work to be done by the employee and the manner of performing it.” Joyce v. Super Fresh Food Mkts., Inc., 815 F.2d 943, 946- 47 (3d Cir. 1987) (stating that indicia of control include the right to hire and fire, the obligation to pay wages, supplying tools for the job, and status as the entity to which the employee reports); see also Barnes v. Alcoa, Inc., 1457 A.3d 730, 735 (Pa. Super. Ct. 2016) (stating th at employer status exists where an entity “had the power and authority to direct a nd control” the employee’s actions (internal quotation omitted)); Am. Road Lines v. Wo rkers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 611, 614-15 (Pa. Commw. Ct. 2012) (“We place particular emphasis on an entity’s ability to hire, fire, discipline and set standa rds for [plaintiff’s] conduct” in determining which entity exercised cont rol over the plaintiff.). Here, the record shows these individuals were TPBC employees. First, each was subject to TPBC policies. Second, they id entified TPBC or Tuto r Perini as their employer, not Keating. Third, the project’s safety plan included a directory identifying TPBC as the “Construction Manager” and listing them as its safety supervisors. App. 929; see also App. 888. Fourth, as stated previously, Cottingham testified that Michael Hart, who had worked for Keating, worked for TPBC and walked around the site checking for safety. Moreover, none of the five pieces of evidence that Cottingh am relies upon to argue that Keating exercised control over the site and that the safety supervisors were Keating’s employees (not TPBC’s) supports this assertion or even presents a disputed fact on this point. First, th at these employees received W-2s listing Keating as their employer is accorded little weight for this purpose. See, e.g., JFT Temps, Inc. v. Workmen’s Comp. Appeal Bd. (Lindsay), 680 A.2d 862, 864 (Pa. 1996) (“The payment of wages may be considered, but is not a dete rminative factor.”); Ba rnes, 145 A.3d at 735 (stating that “the mere fact that [an entity’s] name was on [a n individual’s] paycheck was insufficient to raise a factual question for th e jury” with respect to employer status).8 Second, that the building permits and one letter regarding the project list Keating as the

contact is similarly unavailing because the statut ory employer test requires only that TPBC occupied or controlled the site, not that it did so exclusively. Braun, 983 A.2d at 764 (The “employer’s occupancy or control mu st be actual, but need not be exclusive.” (citing Kelly, 874 A.2d at 656)). Thus, to the extent the permits and letter suggest some Keating involvement on the proj ect, they do not contradict TPBC’s overall control of the construction site. Third, Br adley Statler’s signature on the CMS Agreement, with the title “President Keating Buildin g Corp.,” App. 425, does not reflect Keating’s control of the site nor negate TPBC’s control. 3 In fact, Keating was not a party to the agreement, and the agreement makes no mention of Keating having a role in the project. Statler’s signature line was part of TPBC’s signature bl ock and identifies Statler as “Attorney-inFact,” id., referring to the executed Power of Attorney document granting Statler the ability to bind TPBC. In ad dition, elsewhere in the CM S Agreement, Statler was identified as the contact person for TPBC. Fo urth, the press releas e announcing the 2009 Keating acquisition and stating that Keating “will continue to be managed by its current senior management team,” App. 1107, was fro m 2009, before the Ch estnut Street Tower project contracts were executed in 2012 and 2013, and therefore sheds no light on

3 The record also shows that the docume nt was executed at the request of the property owner, who had worked with Keating in the past and wanted comfort that Statler specifically could bind TPBC.9 Keating’s role at the construction site. T hus, none of these items shows that Keating controlled or occupied the site. 4 For these reasons, there is no genuin e dispute as to TPBC’s occupancy and control of the construction site, and the Di strict Court correctly held that TPBC was entitled to statutory employer immunity.

B Cottingham also argues that the District Court erred in concluding that Keating had no duty to keep the work site safe and thus incorrectly granted summary judgment to Keating. The elements of neg ligence in Pennsy lvania are: (1) a duty or obligation recognized by the law requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting in harm to the interests of another. R.W. v. Manzek, 888 A.2d 740 , 746 (Pa. 2005); accord Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005). “Whether a defendant owes a duty to a plaintiff is a question of law.” In re TMI, 67 F.3d 1103, 1117 (3 d Cir. 1995); R.W., 888

A.2d at 746. Cottingham has presented no evidence that Keating a ssumed responsibility for safety oversight at the Chestnut Street Tower project. There is no contract reflecting that

4 Cottingham has also identified no Keating policies, rules, disciplinary measures, or other indicia of a right to control the project or the supervisors on site.10 Keating undertook such an obligation, nor an y evidence that Keating safety policies or procedures were in place at th e site. Moreover, as discussed above, the safety personnel on site were TPBC employees (not Keating’ s), and the documents all show that TPBC monitored safety issues, provided safety trai ning, and was the supervisor responsible for safety. Thus, the District Court correctly rule d that Keating owed no duty to Cottingham. Cf. Leonard v. Commonwealth, 771 A.2d 1238, 1240-42 (Pa. 2001) (affirming summary judgment for a general contract or and subcontractor because they “had no presence or control with respect to the work site” and owed no duty to plaintiff); Emery, 725 A.2d at 813 (“An owner who is out of possession and without control over the construction site has no duty to the employees of the indepe ndent contractor to whom the work and premises were entrusted.”)

IV For the foregoing reasons, we will affi rm the District Court’s order granting summary judgment.